America incarcerates more people for longer periods of time than any other country in the world.

Why?

To answer that question it is imperative to determine how men and women end up in jail and prison. Generally, judges sentence individuals convicted of a crime to a period of incarceration. The time spent behind bars is punishment.

Any meaningful effort to address the nearly 2.2 million people incarcerated in this country would need to examine the reasons why judges sentence people to jail and prison.

The theory behind punishment is supposed to be more than an “eye for an eye.” Most sentencing schemes across the country incorporate four theories into sentencing -- incapacitation, deterrence, retribution and rehabilitation.

Incapacitation is the simplest and maybe the most sinister theory of punishment. If an offender is incarcerated he or she cannot commit more crimes while locked-up. If we took everyone inclined to commit a crime off the street we would have fewer crimes and fewer people on the street.

There is no question that incapacitation reduces crime rates by some unknown number. The problem is that it is very expensive. Incapacitation carries high costs not only in terms of building and operating prisons, but also in terms of disrupting families and diminishing communities and neighborhoods -- continuing the cycle of crime.

Is incapacitation worth the cost? Sure a violent offender who has multiple offenses should be incapacitated. Should a chronic shoplifter or drug user be incarcerated? They may be a nuisance, but are they a danger?

Does punishment deter crime? Those opposed to the death penalty say absolutely not. A number of states with the death penalty have higher homicide rates than states without the death penalty. If the harshest penalty imaginable does not deter crime how can a period of incarceration?

Generally, supporters of deterrence suggest that punishment deters crime if it is swift and certain. They also point to the distinction between general deterrence and specific deterrence. General deterrence uses the person sentenced for a crime as an example to induce others to refrain from crime, while specific deterrence punishes an offender to dissuade that offender from committing crimes in the future.

Recidivism rates of former prisoners seems to challenge the effectiveness of specific deterrence. There are limits to the impact of general deterrence as well.

Do offenders think about the consequences of their conduct? General deterrence would make sense if an individual did a cost benefit analysis before committing a crime. Something like this, “If I rob the mini-mart I could go to prison for 5 years -- but if I get away I could make $5,000.” That scenario is unlikely. Most crimes are impulsive, such as crimes of passion and crimes committed while under the influence of drugs or alcohol. Those crimes cannot be deterred.

The theory of retribution suggests that the severity of punishment should be proportionate to the seriousness of a crime. Retribution is a subjective, backward‐looking theory of punishment. The criminal justice system has a difficult time in matching punishments and crimes. How does a court uniformly determine the moral depravity of a crime or the impact of a specific punishment on a specific offender?

Finally, and often overlooked or minimized, is rehabilitation. Correctional interventions -- such as drug‐treatment or cognitive restructuring -- seek to change the conduct and thinking of offenders. Rehabilitation is a forward looking theory of punishment.

Unfortunately, the cost of rehabilitation, inside and outside of prison, is a hard sell. With inadequate funding, correction officials, prosecutors, judges and legislators never get to see the full potential of rehabilitation.

Does society have another viable option? Punishment for punishment’s sake is costly and all but a small percentage of inmates will get out of prison someday. Society would benefit immensely if those inmates were prepared to reenter society as productive law abiding citizens and only rehabilitation has the promise to make that happen.

-- Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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